Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting debate. I open on today’s Committee by declaring interests as president-elect of GS1, chair of a foundation trust and a consultant trainer with Cumberlege Connections.

There is no doubt that the backdrop to our discussion is one of the availability of resources. As every day goes by in Committee, we have discovered new responsibilities being placed upon local authorities: the provision of information and advice; the assessment of adults’ and carers’ needs for support and the provision of that support; the implementation of the national eligibility criteria; the Dilnot proposals; and the assessment of self-funders.

I am sure that my noble friend Lord Lipsey is right. We have said a number of times, without really getting a response yet from the noble Earl, that the moment that self-funders become aware that they are essentially subsidising the people funded by local authorities, there will be an end to that. I am absolutely convinced that self-funders will express the view that they ain’t going to put up with it. I wonder whether the Government have thought through the implications of that. I doubt that they have, but those implications will have to be thought through. People will not find it acceptable to be paying above the local authority rate, then taking longer to get to the £72,000 cap, and then finding that the local authority will fund them only at its rate, with potential consequences for where they can be provided with care. It will possibly not be in the care home to which they have already been paying for their own resources. There is real concern about the financial implications of the Bill, which noble Lords all generally welcome, and the fact that the gap between the expectation and the reality could be very wide indeed.

We are of course confronted by the very difficult funding pressures that are on local authorities at the moment. Noble Lords have spoken eloquently about that. My noble friend Lady Bakewell pointed to the differential funding as a result of the Government’s change in formula as far as local authorities are concerned. That is why the Labour Party has called for £1.2 billion of NHS underspend to be transferred to social care over the next two years. However, that is just the start. We are going to see major demographic challenges, which will affect the NHS as much as social care. That is why my noble friend’s amendment has so much ingenuity in suggesting that the Office for Budget Responsibility be asked to complete a review of funding of adult social care by the end of 2014.

This has to be linked to NHS funding as well. I was very interested in a piece in the Independent this morning, emanating from Sir Bruce Keogh. It pointed out that for the NHS since 1948, the amount of money that has been made available has gone up by an average of about 4.5% a year. Now, he says, we are looking at no increase at all. I am not sure that the bodies for which the noble Earl’s department is responsible have woken up to that. For instance, NICE continues to produce guidance which, if implemented, would cost more money. The reports coming from royal colleges and the Keogh review of the 14 trusts talk a lot about staffing deficiencies, but the whole thrust still coming from these reports is to increase expenditure. There is genuine concern that we are talking up the expectation on health and social care knowing that at the moment we cannot see our way to finding where the resources are going to be. Without making this too much of a political debate, I thought that Mr Lansley’s comments in the run-up to the previous election in relation to the so-called death tax were very unfortunate in trying to get a dispassionate debate about how we are to find our way to funding health and social care in future.

This is a very interesting debate. My noble friend has done us a great service in allowing us to discuss this in depth. I hope there may be some sympathy from the Minister for the amendment.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, in some ways this is a reprise of an earlier debate we had in Committee, but none the less it has been valuable. I am grateful to all noble Lords who have contributed. I begin by saying to the noble Lord, Lord Warner, that I am in total agreement that care and support funding is vital. It is essential for the success of the reforms we have been discussing that these services are fully funded. I start by assuring the noble Lord on one key point, which is that the costs of these reforms have been clearly set out in the Bill’s impact assessment, as was our duty.

I listened with care to the case put by the noble Lord that the Office for Budget Responsibility should conduct a review of care and support funding. I do not believe that such a review would be necessary or desirable. As noble Lords will be aware, the Government recently announced the conclusion of the spending round for 2015-16. It is only right that decisions on care and support funding are taken by the Government at the same time as spending plans are set for all areas of government. It is the job of the Government to decide on priorities and what is affordable. Any further review by the OBR would clearly cut across that process.

There is also an issue about the OBR’s autonomy. The OBR performs its duties independently with complete discretion to determine the content of its publications and its programme of research and analysis. It would not be in keeping with the OBR’s duties or its independence to have the Secretary of State commission a report in the way the noble Lord, Lord Warner, suggests. The main duty of the Office for Budget Responsibility is to examine and report on the sustainability of public finances, including a statutory obligation to publish an annual fiscal sustainability report. The most recent of these was published this month and already includes long-term projections of care and support spending, taking account of the cap on care costs and the extension of the means test. A further report, such as the one proposed by this amendment, would risk duplication and repetition.

It will perhaps be helpful if I confirm that the projections set out in this OBR report are broadly in line with the department’s own, and it is on the basis of this analysis that I am in a position to say that the spending round settlement delivers the funding required for the care and support system. We have identified the financial burdens facing care and support, including those arising from this Bill and demographic pressure, and we are putting enough money in to maintain service levels. This will ensure that care and support can be protected and will allow us to deliver on the reforms set out here.

However, we need to do more than simply put more money into care and support. We also need to improve the way that health and care is delivered, and in particular how these services work together. That is why the settlement includes a £3.8 billion pooled health and care budget—the noble Lord, Lord Warner, referred to this—which will be given only on the basis that services are commissioned jointly and seamlessly between the local NHS and local councils.

This is, in many ways, a historic moment. What we intend to do represents a genuinely new departure. It will help to ensure everyone gets a properly joined-up service, with people getting the care they need from whoever is best placed to deliver it—whether that is the NHS or the local authority. Chris Ham from the King’s Fund has welcomed this, calling it,

“a much more ambitious approach to delivering integrated care and a real opportunity to improve the co-ordination of services for patients and service-users”.

We will ask local areas to work collaboratively together in drawing up plans for the use of this money, ensuring that the priorities of both the NHS and care and support are addressed. All plans will include a commitment to protect care and support, ensuring that this money goes where it is needed.

The settlement also provides the funding for the commitments and duties set out in this Bill, and factors in the growth in demand from an ageing population and a growing number of disabled people. With additional pressure on the system, we must ensure that the NHS and care and support services are working together to offer the best possible services for patients, while also addressing the growing demand on the system, which noble Lords have rightly referred to.

The creation of pooled budgets will help to achieve the more efficient use of resources in the system as a whole, driving down costs by tackling expensive pressure points in the system, like A&E, by improving preventive services, reducing unplanned hospital admissions and by allowing people to stay in their homes and live independently for longer. It is intended that £1 billion of the pooled fund will be linked to outcomes achieved, ensuring that local areas are incentivised and rewarded for achieving better outcomes, including those that could reduce financial pressure on the system.

Noble Lords have rightly referred to the pressure on local authority budgets. Of course, we recognise that the last spending round provided local government with a challenging settlement. That is why we took the decision to provide extra funding to help local authorities maintain access to services; that includes £1.1 billion in 2014-15. In fact, spending has been roughly flat over the period since 2010-11. The latest survey shows that councils are expecting a small increase in expenditure next year. The survey also shows that the vast majority of the savings that have been made have been efficiencies. Councils have largely been able to protect services. They should now, however, be looking at how they can transform care by innovating and exploring new ways of working. Many local authorities are achieving much greater integration between health and care services and thereby improving the care for those they look after.

The latest ADASS budget survey shows that only 5% of directors of adult social services believe that quality has suffered as a result of the savings they have made. Five per cent is regrettable but it is a lot less than some of the figures that we see printed in the media.

In 2012-13, bed days lost because of delays attributable to social care were nearly 50,000 fewer than in the previous year. One of the other criticisms one hears is that quality is getting worse in social care and that that is having an impact on the NHS. But if we are going to continue to make these sorts of improvements, we need radically to rethink how we deliver health and social care and move to a more integrated system.

--- Later in debate ---

The noble Lords, Lord Lipsey and Lord Hunt, spoke about self-funders and the disparity that we sometimes see between the rate that self-funders have to pay and that which other people have to pay. Local authorities and individuals can pay different prices for care. This can be because individuals have chosen premium facilities or because the local authority has negotiated a lower price in exchange for buying care for a large number of people. The Government are clear that local authorities should have regard to the cost of care when setting their prices. The noble Baroness, Lady Wilkins, asked whether I could give an assurance that funding has been calculated for independent living fund transition. I can assure the noble Baroness that we have taken account of that issue.

[Lord Hunt of Kings Heath]

I accept the noble Earl’s point, which he has made before, that local authorities sometimes pay less than self-funders because the self-funders are paying for a premium service. Often, however, the service is the same. I wonder whether that is not a legitimisation of what happens. Most organisations representing self-funders feel that the higher premium they pay is actually subsidising the rates paid by local authorities. If the Government are saying that the lower rates are because of bulk purchasing, quite a lot of convincing will need to happen to make people feel confident that that is the case.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, subject to later comments about funding and the issues raised by my noble friend Lord Beecham, I have a great deal of sympathy with my noble friend Lord Dubs in wanting to have some kind of transparent appeal decision. It is clear from our debates on the Bill that local authorities will be called upon to make decisions which will have a fundamental impact on people living in their local authority area—eligibility, care plans, personal budgets, support for carers, self-funders baseline assessment and many more. We know that this will be hard for many people and their families to navigate. At the moment, it appears that the Government are relying either on local authorities themselves to develop their own mechanism, which might not enjoy public confidence, or on referrals to the Local Government Ombudsman. As my noble friend Lord Dubs says, that would be on the basis of maladministration rather than, perhaps, on the facts of the case.

Judicial review is hardly an option for many people. The reduction in legal aid will have an impact on the ability of places such as law centres to take JR cases forward on behalf of clients. I am the patron of Birmingham Law Centre, which has had to close its doors. In the last few years, the law centre was able to undertake a number of JR cases but it is no longer there to do that. The availability of a simple, low-cost appeal system would command some support.

When I was DWP Minister, I attended a day at the Birmingham tribunal centre looking at how cases were conducted. I was impressed at the ability of the three-person panels to allow the complainant to put their case across in a fairly informal setting with decisions made pretty rapidly. We know that these tribunal systems have been used more frequently with the introduction of the new arrangements. They command some public confidence. While I do not want to add to the financial burden on the system as a whole, I wonder whether it would be cost effective, as my noble friend Lord Warner says, for there to be a simple, fast, low-cost system. This will give people some confidence that, where they felt that the local authority had not made a reasonable decision, there would be allowance for it to be reconsidered. I am sure that this is a matter for discussion between Committee and Report and perhaps the noble Earl would be prepared to meet with my noble friend to discuss this further.

[Earl Howe]

My Lords, I am pleased that this important issue has been raised. I hope that I can provide the noble Lord, Lord Dubs, with at least a measure of reassurance relating to his concerns. As he has explained, the purpose of Amendment 104ZE is to include in the Bill provision for adults to make an appeal to the First-tier Tribunal if they disagree with the local authority about its decisions relating to matters such as eligibility, financial assessments, care and support plans and other obligations under this Bill. Often the individuals who access the care system are some of the most vulnerable in our society and it can seem daunting to challenge the decision of the local authority. I entirely agree that it is important that such people have the opportunity to make their voice heard if they feel that the local authority has reached the wrong decision in their case and that their argument is given the fullest consideration before a transparent, fair outcome is reached. The changes which the Bill would bring about will result in many more people being brought into contact with their local authority. This is why it is appropriate that we are now reviewing the current arrangements regarding complaints.

The current complaints arrangements for adult care and support were reformed in 2009 and are set out in regulations. The regulations require the local authority to have a publicised arrangement for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedure for dealing with complaints. Each local authority will have a different process, and we appreciate that local variation may result in varying user experiences.

If a complainant is not satisfied with the response from the local authority, they are then able to refer the case to the Local Government Ombudsman, as has been mentioned. The Local Government Ombudsman is independent of the local authority. It can investigate complaints about whether the decision-making process has been conducted appropriately and can make a recommendation to the local authority.

--- Later in debate ---

[Earl Howe]

Certainly, I anticipate that the results of the review will be available before the Bill has concluded its passage through Parliament. I stand to be corrected on that but I think I am right. In any case, changes to the way in which complaints are handled can be made through regulations under existing legislation, so I think that provides the necessary flexibility.

[Lord Hunt of Kings Heath]

Would the noble Earl find it helpful if, on Report, we introduced an order-making power in the primary legislation that is specifically built around the Bill?

[Earl Howe]

That might prove helpful but I will take advice on it. We do not want to duplicate powers that already exist in legislation. However, if we decide that changes are needed, we need to make sure that they can be expedited properly. I am advised that the consultation will close in October this year and that the review of complaints arrangements, of which the consultation is a part, will conclude in the winter. Therefore, if changes need to be made to the Bill, they will need to be made in another place.

The noble Lord, Lord Dubs, said that in our response to the Joint Committee it is vital to consider redress. Of course, the principle of that is not in dispute. Our review of complaints arrangements is in line with our response to the Joint Committee’s recommendation, as I hope he acknowledges. In answer to the noble Lord, Lord Warner, I agree with him that there are likely to be teething problems as this system is established. That is precisely why we felt the need to review the current system. We will aim to ensure that any new mechanisms are in place before implementing the new system, as I have already indicated.

With that, I hope that I have provided at least some reassurance to noble Lords opposite that we take this issue seriously. We understand the concerns that have prompted this amendment and will certainly give further consideration to the noble Lord’s idea of a tribunal system in the light of the outcome of the consultation. I hope therefore that for the time being he will feel content to withdraw his amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, that was a pretty persuasive case, to which I hope the noble Baroness will be sympathetic. The noble Lord made the particular point that early intervention will lead to better outcomes. That could be a message that relates to this Bill as a whole. The noble Baroness knows that we were not able to have our debate on services for deaf people last week because of the lateness of the hour. I wonder whether, between now and Report, she would be prepared to write to me about how she thinks this Bill might specifically relate to deaf people. Clearly, some of the issues the noble Lord has raised are apposite to deaf people in terms of early identification and assessment. I would not expect her to answer that point today, but it would be extremely helpful if she were able to write to me on it in advance of us coming back to the QSD in the early autumn.

[Baroness Northover]

My Lords, I thank the noble Lord, Lord Low, for his amendment. It raises some important issues. He emphasises that local authorities need to follow up those who have been newly certified as sight-impaired or severely sight-impaired in a timely manner where they have indicated that they wish to be registered or to have an assessment of their needs for care and support. Indeed, we have great sympathy with his concerns. We accept that people who have acquired a visual impairment should have an early opportunity to have access to information and advice so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.

As we have discussed, Clause 4 requires local authorities to make available universal information and advice on care and support, which will of course be relevant here. But people who lose their sight suddenly can also need more time to come to terms with their loss and engage with the support that might be available to them. If that is the case, it might be more appropriate to have a greater degree of flexibility around the timescales for when that support is offered or re-offered. Individuals differ in the way that they respond. We therefore believe that it would be better if the detail of this was covered in guidance, as it is for deaf-blind people, rather than in the Bill or in the regulations. In response to the noble Lord, Lord Hunt, there may well be a parallel here for deaf people, I am happy to write to him in answer to his questions.

Covering this in guidance would allow greater flexibility to update and adapt the arrangements. I can assure the noble Lord, Lord Low, that officials intend to work closely with the RNIB and other stakeholders to ensure that the guidance is as comprehensive as possible. He is absolutely right that the person needs to be at the heart of that guidance. In the light of what I have said to both noble Lords, I hope that the noble Lord, Lord Low, will be happy to withdraw his amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, very briefly, I support my noble friend. In a sense, we have already had two debates on the employment practices of providers that are contracted by the local authority. The first was on Clause 5, regarding the local authority’s market-making role. We have also discussed under Clause 80 whether the Government, through regulations, will ensure that the CQC’s oversight of local authorities’ commissioning will be treated as a major priority.

The challenge for us on Report will be to deal with this issue by bringing it all together. There is no doubt that there is real concern about the employment practices of a number of companies that work in the adult social care sector and the lack of monitoring by local authorities in their commissioning. One way or another, the Bill will be very much enhanced if we can get to grips with this problem of poor employment practice. I have no doubt whatever that the general use of zero-hours contracts and the fact that those workers who are often low-paid have to pay the cost of travel themselves and are not paid for the time they take to travel from client to client leads inevitably to an impact on the quality of care, however worthy those people are. We will have a great opportunity on Report to do something about it and we will do so.

[Earl Howe]

My Lords, these are indeed serious issues and I am grateful to the noble Lord, Lord Warner, for raising them. Those who work directly providing care and support play a vital role in helping and supporting vulnerable people. Organisations that provide care must do all that they can to make sure that their workforce provides compassionate care and that people are treated with dignity, consistent with well-being principles.

Although the majority of care and support provided is good, I am aware that in some cases the practice of both providers and commissioners of care risks a negative impact on the well-being of those cared for. For example, the recent report of the Low Pay Commission has warned of lack of compliance with the national minimum wage, such as by not paying for travelling time between appointments. I am also aware that some local authorities’ contracts with care providers may lead to inappropriate practices, such as very short visits.

I agree entirely with the noble Lord’s intent to see a move away from such practices, which can undermine well-being, independence and dignity, as well as disempower those responsible for providing care and support. The question is how to do that. I believe that addressing these issues requires a broad range of approaches, some of which are already included in the Bill, but I am doubtful that further legislation is appropriate.

The terms and conditions of care and support workers, including pay, are set by employers within the existing requirements of employment legislation, with the same enforcement through HM Revenue and Customs, penalties and sanctions as in other sectors. All providers must, of course, pay at least the national minimum wage. This is law, and failure to meet the requirement is never acceptable. However, the law need not be repeated in the Bill or, indeed, in separate regulations that effectively duplicate those that we already have.

Where care and support is funded by the state, it is allocated through local authorities, which must ensure that the providers they commission from offer good value for money and a high-quality service. Clause 5 establishes a new duty on local authorities to promote a sustainable, diverse and high-quality market for care and support in their area, and is clear that an authority’s own commissioning practices must be in line with this duty. The Department of Health is working with the Association of Directors of Adult Social Services, the Think Local, Act Personal partnership and local authorities to embed this duty and improve commissioning generally.

We are providing firm leadership in this area. The Minister of State for Care Services, my colleague Norman Lamb, recently announced a home care challenge, whereby we will work with the sector to generate new ideas around improving quality in home care services and local authority commissioning. The department is also offering support to local authorities to develop their market-shaping capacity, and encourage high-quality provision and an understanding of market capacity and capabilities.

I am sure that the noble Lord, Lord Warner, will appreciate, without my needing to say this, that wages and associated employment practices are not the only determinant of service quality and a range of factors affect care workers having the right attitude, values and skills. The Department of Health is working on a number of initiatives with partners to develop a code of conduct and a recommended minimum training standard. Further work includes supporting workforce training through a workforce development fund and working with Skills for Care and the National Skills Academy for Social Care to improve the capability and skills of care workers. For the first time, this will now include support and training for personal assistants as well as people working for more formal providers. The department is also working with Skills for Care to develop a sector compact to promote culture change and skills development in the sector.

More broadly, through registration and monitoring, the Care Quality Commission enforces standards in this sector. The CQC requires that employers ensure that staff are well managed and have the opportunity to develop and improve their skills. Once services are registered, the CQC continues to monitor and inspect them against essential standards.

[Lord Hunt of Kings Heath]

I have never really been able to tempt the noble Earl to comment on the priority to be given by the CQC to the role of the providers and the responsibilities of local authorities in commissioning services. Can I tempt him to say more? Clause 80 clearly states:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities”.

Would the Government be willing to say to the CQC, “We will prescribe regulations that make it clear that this will indeed be a priority”? I have long felt that the way to deal with this is through the CQC’s own monitoring of how local authorities commission those services. It would be a way through if the Government were prepared to say that. The more I listen to our debates, the more I begin to think that this ought to be, of all the things that the CQC does, its number one priority.